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(ORDER LIST: 558 U.S.)
MONDAY, NOVEMBER 16, 2009
ORDERS IN PENDING CASES
09M46 DANIEL, ROCHELLE V. TRANS UNION CONSUMER REPORTING
The motion to direct the Clerk to file a petition
for a writ of certiorari out of time is denied.
09M47 OGEDENGBE, RAFAT S. V. UNITED STATES
The motion for leave to file a petition for a
writ of certiorari under seal with redacted copies
for the public record is granted.
09M48 AHMED, FAYAD V. GATES, SEC. OF DEFENSE
The motion for leave to proceed in forma
pauperis without an affidavit of indigency executed
by petitioner is granted.
09M49 JACKSON, MARK C. V. SHINSEKI, SEC. OF VA
The motion for leave to proceed as a veteran is denied.
09M50 OGEDENGBE, WOLE E. V. UNITED STATES
The motion for leave to file a petition for a writ
of certiorari under seal with redacted copies for the
public record is granted.
08-1569 UNITED STATES V. O'BRIEN, MARTIN, ET AL.
The motion of Arthur Burgess for appointment of
counsel is granted. Leslie Feldman-Rumpler, Esq., of Boston,
Massachusetts, is appointed to serve as counsel for respondent
1
Arthur Burgess in this case. The motion of Martin O'Brien for
appointment of counsel is granted. Timothy P. O'Connell,
Esquire, of Charlestown, Massachusetts, is appointed to
serve as counsel for respondent Martin O'Brien in this case.
08-10846 IN RE MICHAEL S. MICHALSKI
08-10886 IN RE CHARLES W. ALPINE
The motions of petitioners for reconsideration of orders
denying leave to proceed in forma pauperis are denied.
09-1 HOLY SEE V. DOE, JOHN V.
The Solicitor General is invited to file a brief in
this case expressing the views of the United States.
09-5078 JERRY, BERNARD V. PENNSYLVANIA
09-5398 JAFFE, SOL V. US AIR AIRWAYS, INC., ET AL.
The motions of petitioners for reconsideration of orders
denying leave to proceed in forma pauperis are denied.
09-6389 BERAS, ROBERTO V. CARVLIN, STEPHANIE M., ET AL.
The motion of petitioner for leave to proceed in forma
pauperis is denied. Petitioner is allowed until December 7,
2009, within which to pay the docketing fee required by Rule
38(a) and to submit a petition in compliance with Rule 33.1 of
the Rules of this Court. Justice Sotomayor took no part in the
consideration or decision of this motion.
09-6610 JOHNSON, JOHN C. V. SHINSEKI, SEC. OF VA
The motion of petitioner for leave to proceed in forma
pauperis is denied. Petitioner is allowed until December 7,
2009, within which to pay the docketing fee required by Rule
38(a) and to submit a petition in compliance with Rule 33.1 of
the Rules of this Court.
2
CERTIORARI GRANTED
09-158 MAGWOOD, BILLY J. V. CULLIVER, WARDEN, ET AL.
The petition for a writ of certiorari is granted
limited to Question 1 presented by the petition.
CERTIORARI DENIED
08-1378 CHF INDUSTRIES, INC. V. PARK B. SMITH, INC.
08-1564 ACLU OF FL, ET AL. V. MIAMI-DADE CTY. SCH. BD., ET AL.
08-1566 McCOMB, BRITTANY, ET AL. V. CREHAN, GRETCHAN, ET AL.
08-10440 FORD, STEPHANIE L. V. CHRISTIANA CARE HEALTH SYSTEMS
08-10625 KIM, GWANJUN V. DEPT. OF LABOR, ET AL.
09-47 US AVIATION UNDERWRITERS, ET AL. V. UNITED STATES
09-55 PLATONE, STACY V. DEPT. OF LABOR
09-108 DAVIS, LAWRENCE P. V. TARRANT COUNTY, TX, ET AL.
09-187 ELLIOTT, VALINDA J. V. WHITE MOUNTAIN APACHE, ET AL.
09-198 MEDELA AG, ET AL. V. KINETIC CONCEPTS, INC., ET AL.
09-207 J. R. Y., ET AL. V. WOODMEN OF THE WORLD LIFE INS.
09-208 WRINN, EUGENE V. JOHNSON, DAREN, ET AL.
09-220 WHISENHANT, THOMAS W. V. ALLEN, COMM'R, AL DOC
09-265 INDEPENDENCE INSTITUTE V. BUESCHER, CO SEC. OF STATE
09-280 OBIAJULU, RAYMOND V. LOCAL UNION NO. 995, ET AL.
09-303 SMITH, DAVID L. V. USCA 10
09-304 ROTHMAN, LINE, ET AL. V. TARGET CORP., ET AL.
09-307 BROWN, RAY C., ET UX. V. FALCONE, PHILIP A., ET AL.
09-308 U-HAUL CO. OF CA V. BERKELEY, CA, ET AL.
09-317 PATTERSON, CA V. BLDG. IND. ASSOC. C. CA, ET AL.
09-322 GREGORY, CRYSTAL, ET AL. V. DILLARD'S INC.
09-326 HARJO, SUZAN S., ET AL. V. PRO-FOOTBALL, INC.
09-327 SAMPSON, FRANCIS J. V. SUN LIFE ASSURANCE
3
09-368 JENKINS, WAYNE L. V. ALABAMA
09-372 FORTE, EUGENE V. KNIGHT RIDDER, ET AL.
09-382 CORREA-RUIZ, CARMELO, ET AL. V. FORTUNO, GOV. OF PR, ET AL.
09-407 ABREU-VELEZ, ANA M. V. BD. OF REGENTS, ET AL.
09-421 McCLAREN, JASON L. V. WISCONSIN
09-433 WILLS, KENNETH B. V. POTTER, POSTMASTER GEN.
09-437 SPECHLER, JAY S. V. TOBIN, VICTOR
09-443 BUCK, JAMES A. V. IRS
09-450 KOLOAY, BRYAN R. V. HOLDER, ATT'Y GEN.
09-454 GAHAGAN, DANIEL S. V. UNITED STATES
09-455 CLARKE, PAMELA V. UNITED STATES
09-456 ADAMS, ROBERT K. V. UNITED STATES
09-467 MILLER, TERRY M. V. UNITED STATES
09-5330 GOSSELIN, KEITH V. V. COLORADO
09-5346 POTTER, JOSEPH V. SOUTH COAST PLUMBING, ET AL.
09-5355 MONGANE, NABINTU A. V. HOLDER, ATTY. GEN.
09-5374 LUMSDEN, LARRY E. V. UNITED STATES
09-5388 FRANCIS, REVA V. MILLER, WARDEN, ET AL.
09-5448 RODRIGUEZ, JOSE F. V. QUALITY ENGINEERING PRODUCTS
09-5474 CARTER, ANTHONY T. V. UNITED STATES
09-6004 BUTLER, RAYMOND O. V. CALIFORNIA
09-6367 REED, LEROY C. V. FLORIDA, ET AL.
09-6369 EDMOND, ALBERT V. CASKEY, WARDEN
09-6371 ENRIQUEZ, JUAN V. THALER, DIR., TX DCJ
09-6372 CLERVIL, JOCELYN V. McNEIL, SEC., FL DOC, ET AL.
09-6375 McCARTHY, ROMAN S. V. UNKNOWN
09-6376 D'ANGELO, THOMAS V. RYAN, DIR., AZ DOC, ET AL.
09-6382 ODOM, CHRISTOPHER A. V. OZMINT, DIR., SC DOC, ET AL.
4
09-6385 PETERSEN, JASON J. V. MI DOC
09-6387 BARKUS, HARRY A. V. RUNNELS, WARDEN
09-6397 CHRISTIAN, ALFREDA V. CALIFORNIA, ET AL.
09-6398 DEL RIO, VICTOR V. TEXAS, ET AL.
09-6402 STATEN, JAMES K. V. PARKER, WARDEN
09-6410 BYNES, TERRY E. V. OKLAHOMA
09-6411 WHIRTY, JOHN R. V. THALER, DIR., TX DCJ
09-6413 ROTH, JOHN W. V. PENNSYLVANIA
09-6419 DUTRA, SARAH E. V. CALIFORNIA
09-6421 DERRINGER, DAVID V. MOORE, JAYME, ET AL.
09-6424 SIMMONS, MICHAEL D. V. BAZZLE, WARDEN
09-6426 SMALL, BRUCE L. V. FLORIDA
09-6428 MOHIUDDIN, AHSAN V. RAYTHEON CO.
09-6431 BABLES, MARILYN M. V. KANSAS CITY MO SCHOOL DIST.
09-6439 McGEE, DWAYNE A. V. FLORIDA
09-6443 McCRAY, DONALD R. V. GLASS, LEE
09-6450 LOMAX, BOBBY A. V. MIZE, SUPT., RECEPTION
09-6451 KITCHEN, JAMES E. V. MICHIGAN, ET AL.
09-6458 TORRES, KAREN V. AMERADA HESS CORP.
09-6463 BROWN, ANTHONY L. V. CALIFORNIA
09-6468 TELFAIR, TOMMIE H. V. TANDY, KAREN P., ET AL.
09-6469 DANIEL, CHARLES V. SCOTT, STEVEN, ET AL.
09-6471 DALY, PAUL W. V. RYAN, DIR., AZ DOC, ET AL.
09-6473 COTTON, RAKEISH V. COLEMAN, SUPT., FAYETTE
09-6474 DAVIS, RICHARD A. V. HARMON, WARDEN, ET AL.
09-6475 COLLIE, LUTHER A. V. McNEIL, SEC., FL DOC, ET AL.
09-6477 DARBY, THOMAS A. V. MOORE, WARDEN
09-6479 DAHL, TED V. THALER, DIR., TX DCJ
5
09-6480 CHAVARRIA, ARMANDO V. CALIFORNIA
09-6481 TAYLOR, DAVID P. V. MURPHY, COMM'R, CT DOC, ET AL.
09-6483 WHITE, KALA B. V. LUOMA, WARDEN
09-6486 ASANTE, ALBERT A. V. NEW YORK
09-6488 JUDD, KEITH R. V. NEW MEXICO
09-6493 LARSON, HOLLIS J. V. MINNESOTA
09-6500 ANDREWS, KEVIN V. SEATTLE, WA
09-6502 TAYLOR, ERIC, ET UX. V. NATIONAL CITY BANK
09-6505 MEEHAN, DENNIS V. NEW YORK
09-6511 SANCHEZ, CARLOS A. V. McNEIL, SEC., FL DOC, ET AL.
09-6522 EDE, JEFFREY A. V. PENNSYLVANIA
09-6526 AYYAR, RAJAN R. V. CALIFORNIA
09-6532 MARSHALL, AUNDRA V. ALABAMA
09-6533 LaFORGE, ANDREA B. V. IOWA
09-6542 MONACELLI, KATHALINA V. LEE CTY. EDU. ASSN., ET AL.
09-6543 MONACELLI, KATHALINA V. HEARTLAND ED. CONSORTIUM, ET AL.
09-6544 TURNER, CLAYBORN S. V. RUNNELS, WARDEN
09-6545 NUNLEY, PRESTON E. V. MISSISSIPPI
09-6546 MILLER, ROMIE H. V. FRIEL, WARDEN
09-6550 WELLS, RAYNE D. V. WASHINGTON
09-6553 BROOM, ROMELL V. STRICKLAND, GOV. OF OH, ET AL.
09-6556 WATKINS, THEODORE N. V. MASSACHUSETTS
09-6559 DOORBAL, NOEL V. McNEIL, SEC., FL DOC
09-6563 MONACELLI, KATHALINA V. HEARTLAND ED. CONSORTIUM, ET AL.
09-6564 NGUYEN, HUNG V. SUPERIOR COURT OF CA, ET AL.
09-6565 REEVES, JASON M. V. LOUISIANA
09-6569 BURROUGHS, DELORIS V. BROADSPIRE
09-6570 ADAMS, BRIAN V. HONDA ENGINEERING NORTH AMERICA
6
09-6571 BOWNES, ULYSSES V. EPPS, COMM'R, MS DOC
09-6573 MAXWELL, ROBERT V. TALLEY, RONALD, ET AL.
09-6587 SCOTT, DERRICK V. HANSON, RAY
09-6619 POLONCZYK, KIM A. V. CORPORATE STATE OF AR, ET AL.
09-6639 YEBOAH-SEFAH, DANIEL V. RUSSO, SUPT., SOUZA-BARANOWSKI
09-6642 MUHAMMAD, AKEEM V. SAPP, GEORGE, ET AL.
09-6649 NDONGO, GERMAIN D. V. HOLDER, ATT'Y GEN.,
09-6695 SANG, THON N. V. SCRIBNER, WARDEN
09-6724 VALVERDE, JESUS V. ARIZONA
09-6735 BRAMIT, MICHAEL L. V. CALIFORNIA
09-6756 TATE, ROBERT W. V. WARREN, WARDEN
09-6758 JEANLOUIS, ROOSEVELT V. McNEIL, SEC, FL DOC
09-6761 OWENS, ROSCOE M. V. MICHIGAN
09-6769 STANKO, RUDY V. DAVIS, WARDEN, ET AL.
09-6772 FOBBS, VALERIE M. V. POTTER, POSTMASTER GEN.
09-6793 MARTIN, HENRY W. V. REYNOLDS, WARDEN
09-6870 JAMISON, CLARENCE V. DELAWARE
09-6908 HYDE, WILLIAM V. UNITED STATES
09-6923 MARK, ALBERT M. V. BAUER, HOPE, ET AL.
09-6941 HOLSTICK, ANTHONY F. V. UNITED STATES
09-6958 BECKETT, GEORGE V. GANSLER, ATT'Y GEN. OF MD
09-6963 HADDAD, RAOUF G. V. HERTZ CORP.
09-6978 LEATCH, JASON D. V. UNITED STATES
09-6979 KOLLAR, SCOTT V. UNITED STATES
09-6981 MORGAN, KENDRICK T. V. UNITED STATES
09-6984 DANIELS, JERMAL V. UNITED STATES
09-6989 GARCIA, JAMIE V. UNITED STATES
09-6990 WHITE, ANTHONY G. V. UNITED STATES
7
09-6996 JEFFERS, MARC A. V. UNITED STATES
09-6999 JONES, MARLIN B. V. PLATTEVIEW APARTMENTS, ET AL.
09-7002 WATTERS, JIMMY J. V. UNITED STATES
09-7005 WISE, GARY V. FLOYD, JUDGE, USDC SC, ET AL.
09-7008 ALLEN, VINCENT L. V. UNITED STATES
09-7010 CAIN, LaANTHONY C. V. UNITED STATES
09-7011 CRUZ-GRAMAJO, GUSTAVO V. UNITED STATES
09-7015 MONTES, GUSTAVO S. V. UNITED STATES
09-7020 KINDSFATHER, WESLEY W. V. UNITED STATES
09-7022 KNIGHT, ROY V. UNITED STATES
09-7024 HERRING, MONROE V. UNITED STATES
09-7025 GABLE, KATHERINE M. V. UNITED STATES
09-7026 HICKS, PAUL V. UNITED STATES
09-7027 HARRIS, LISA V. UNITED STATES
09-7028 PORTER, KENNETH E. V. UNITED STATES
09-7032 WYLIE, AARON L. V. UNITED STATES
09-7034 RODRIGUEZ-MENDIOLA, CONSTANTINO V. UNITED STATES
09-7036 KARIM-PANAHI, PARVIZ V. UNITED STATES
09-7037 SMITH, DEREK A. V. UNITED STATES
09-7038 MUNIZ, MANUEL V. UNITED STATES
09-7039 MORGAN, MICHAEL V. UNITED STATES
09-7041 CALLE-OCHOA, JOHN J. V. UNITED STATES
09-7042 CASTRO-GUEVARRA, JOSE M. V. UNITED STATES
09-7044 ADAMS, STEVEN A. V. UNITED STATES
09-7045 SMITH, CURTIS V. UNITED STATES
09-7046 MACKAY, ROBERT V. UNITED STATES
09-7049 SUAREZ, OCTAVIO H. V. UNITED STATES
09-7052 HERNANDEZ-HERNANDEZ, ALEJANDRO V. UNITED STATES
8
09-7053 GIBSON, JAMES E. V. VAUGHAN, WARDEN
09-7055 GARCIA, MACK V. UNITED STATES
09-7059 GRESHAM, JAMES H. V. UNITED STATES
09-7061 CANTU, CHRISTOPHER J. V. UNITED STATES
09-7065 LONGSTREET, RAY V. UNITED STATES
09-7067 PONTON, TROY V. UNITED STATES
09-7068 NELSON, NORMAN R. V. UNITED STATES
09-7070 PULLIAM, JOSEPH V. UNITED STATES
09-7075 CAMERON, TAIWAN D. V. UNITED STATES
09-7076 CAREY, JOHN F. V. UNITED STATES
09-7077 ESQUIVEL, JAIME L. V. UNITED STATES
09-7078 DAHLER, DAVID S. V. HOLINKA, WARDEN
09-7080 TORRES-TORRES, EDUARDO V. UNITED STATES
09-7081 WOODBERRY, CHRISTOPHER R. V. UNITED STATES
09-7084 LOERA, JOSE J. V. UNITED STATES
09-7090 POLAK, JEFFRY V. UNITED STATES
09-7091 PUCKETT, CHARLES E. V. UNITED STATES
09-7093 KIDERLEN, STEVEN D. V. UNITED STATES
09-7095 LAURY, KERRY D. V. UNITED STATES
09-7100 TURNER, RICHARD V. UNITED STATES
09-7101 WILLIAMS, MARCUS R. V. UNITED STATES
09-7105 CANIPE, ERNEST W. V. UNITED STATES
09-7107 OSUNA, ELOY V. UNITED STATES
09-7110 STRAHAN, JERRY V. UNITED STATES
09-7111 SCOTT, JAMEY R. V. UNITED STATES
09-7113 AKERS, MONTGOMERY C. V. UNITED STATES
09-7115 ANDERSON, DANIEL V. UNITED STATES
09-7118 BLURTON, JOE R. V. NORTH DAKOTA
9
09-7122 OBASOHAN, JULIUS V. UNITED STATES
09-7124 MONTOYA, JUNIOR R. V. UNITED STATES
09-7126 MARTINEZ-VASQUEZ, ALEJANDRO V. UNITED STATES
09-7128 WALLACE, TIMI V. UNITED STATES
09-7133 MICHEL, ADELSON V. UNITED STATES
09-7137 NELSON, MILTON A. V. UNITED STATES
09-7138 CASTILLO-HERNANDEZ, MACEDONIO V. UNITED STATES
The petitions for writs of certiorari are denied.
09-174 GLOGOWER, ANDREW D. V. CLARK, SHARON P.
The motion of National Association of Insurance
Commissioners for leave to file a brief as amicus curiae is
granted. The petition for a writ of certiorari is denied.
09-217 PETERS, KRISTAN V. SCIVANTAGE, ET AL.
09-360 LEVINE, SAMUEL M. V. McCABE, EDWARD, ET AL.
09-427 GRANT, TONE N. V. UNITED STATES
The petitions for writs of certiorari are denied. Justice
Sotomayor took no part in the consideration or decision of these
petitions.
09-6447 COHEN, L. C. V. SYME, JAMES J., ET AL.
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari
is dismissed. See Rule 39.8.
09-6459 SPURLOCK, GILBERT V. BANK OF AMERICA, N.A.
09-6554 PLUMMER, WILLIAM P. V. CALIFORNIA
The motions of petitioners for leave to proceed in forma
pauperis are denied, and the petitions for writs of certiorari
are dismissed. See Rule 39.8. As the petitioners have
repeatedly abused this Court's process, the Clerk is directed
10
not to accept any further petitions in noncriminal matters from
petitioners unless the docketing fees required by Rule 38(a)
are paid and the petitions are submitted in compliance with Rule
33.1. See Martin v. District of Columbia Court of Appeals, 506
U.S. 1 (1992) (per curiam). Justice Stevens dissents. See id.,
at 4, and cases cited therein.
09-6586 SMITH, ERIC D. V. KNIGHT, SUPT., PENDLETON
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of certiorari
is dismissed. See Rule 39.8.
09-6919 DUNLAP, RAHEEM V. GRAHAM, SUPT., AUBURN
09-6982 PITCHER, RICHARD V. UNITED STATES
09-7003 TOWNSEND, DAMION V. UNITED STATES
09-7064 TAVARES, ULYSSES V. UNITED STATES
09-7072 TYSON, ANTONIA V. UNITED STATES
09-7106 PARRA, CLAUDIO V. UNITED STATES
The petitions for writs of certiorari are denied. Justice
Sotomayor took no part in the consideration or decision of these
petitions.
HABEAS CORPUS DENIED
09-7103 IN RE ALLEN F. CALDWELL
09-7202 IN RE FRANK MEDEL, JR.
The petitions for writs of habeas corpus are denied.
MANDAMUS DENIED
09-6467 IN RE PAUL MINIX
09-7030 IN RE CHARLES P. MAXWELL
The petitions for writs of mandamus are denied.
11
09-6412 IN RE CHARLES W. ALPINE
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of
mandamus and/or prohibition is dismissed. See Rule 39.8.
09-6501 IN RE DOROTHY WOERTH
The petition for a writ of mandamus and/or prohibition
is denied.
09-6528 IN RE CHARLES W. ALPINE
The motion of petitioner for leave to proceed in forma
pauperis is denied, and the petition for a writ of
mandamus and/or prohibition is dismissed. See Rule 39.8.
09-6538 IN RE HENRY VAN BROUGHTON
09-7006 IN RE JOSEPH C. MINNEMAN
The petitions for writs of mandamus and/or prohibition
are denied.
REHEARINGS DENIED
08-10148 McMULLEN, KIM V. TENNIS, SUPT., ROCKVIEW, ET AL.
08-10150 FRANKEL, MARTIN V. UNITED STATES
08-10268 COLLEEN F. V. RIVERSIDE COUNTY DEPT. OF PUB.
08-10504 HAWKINS, THOMAS V. CALIFORNIA, ET AL.
08-10508 HAQUE, ABRAR V. UNITED STATES
08-10512 SWIFT, ANTHONY V. MISSISSIPPI
08-10576 YOUNG, ERNIE V. PRESLEY, ELVIS A., ET AL.
08-10600 WRIGHT, MICHAEL D. V. ZOELLER, ATT'Y GEN. OF IN
08-10738 OLIVIER, MAURICE P. V. CALIFORNIA
08-10927 IN RE LeSEAN ROBERTS
08-11003 IN RE ALBERT B. SINGLETARY
08-11127 CHEESEMAN, ROBERT V. REEDSPORT, OR, ET AL.
12
09-5034 RABY, CHARLES E. V. THALER, DIR., TX DCJ
09-5086 SMITH, ZACHARY V. DENNY, WARDEN
09-5237 GREENE, RODNEY J. V. McNEIL, SEC., FL DOC
09-5439 CORNES, ERNEST V. ILLINOIS
09-5793 BROWN, DERRICK V. UNITED STATES
09-5847 RONWIN, EDWARD V. BAYER CORP.
09-6060 MOORE, IRENE M. V. MSPB
The petitions for rehearing are denied.
13
1 Cite as: 558 U. S. ____ (2009)
Per Curiam
SUPREME COURT OF THE UNITED STATES ROBERT WONG, WARDEN v. FERNANDO
BELMONTES, JR. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08–1263. Decided November 16, 2009
PER CURIAM. In 1981, in the course of a burglary, Fernando Belmon-
tes bludgeoned Steacy McConnell to death, striking her inthe head 15 to 20 times with a steel dumbbell bar. See People v. Belmontes, 45 Cal. 3d 744, 759–761, 755 P. 2d 310, 315–316 (1988). After the murder, Belmontes and hisaccomplices stole McConnell’s stereo, sold it for $100, and used the money to buy beer and drugs for the night. Id., at 764–765, 755 P. 2d, at 318–319.
Belmontes was convicted of murder and sentenced to death in state court. Unsuccessful on direct appeal and state collateral review, Belmontes sought federal habeasrelief, which the District Court denied. The Court of Ap-peals reversed, finding instructional error, but we over-turned that decision. Ayers v. Belmontes, 549 U. S. 7 (2006); see also Brown v. Belmontes, 544 U. S. 945 (2005).
On remand, the Court of Appeals again ruled for Bel-montes, this time finding that Belmontes suffered ineffec-tive assistance of counsel during the sentencing phase of his trial. The District Court had previously denied reliefon that ground, finding that counsel for Belmontes had performed deficiently under Ninth Circuit precedent, butthat Belmontes could not establish prejudice under Strick-land v. Washington, 466 U. S. 668 (1984). Belmontes v. Calderon, Civ. S–89–0736 DFL JFM (ED Cal., Aug. 15,2000), App. to Pet. for Cert. 140a, 179a, 183a. The Court of Appeals agreed that counsel’s performance was defi-cient, but disagreed with the District Court with respect to
2 WONG v. BELMONTES
Per Curiam
prejudice, determining that counsel’s errors underminedconfidence in the penalty phase verdict. Belmontes v. Ayers, 529 F. 3d 834, 859–863, 874 (CA9 2008). We dis-agree with the Court of Appeals as to prejudice, grant the State’s petition for certiorari, and reverse.
I Belmontes argues that his counsel was constitutionally
ineffective for failing to investigate and present sufficient mitigating evidence during the penalty phase of his trial.To prevail on this claim, Belmontes must meet both thedeficient performance and prejudice prongs of Strickland, 466 U. S., at 687. To show deficient performance, Belmon-tes must establish that “counsel’s representation fell belowan objective standard of reasonableness.” Id., at 688. In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the perform-ance inquiry necessarily turns on “whether counsel’s assistance was reasonable considering all the circum-stances.” Id., at 688–689. At all points, “[j]udicial scru-tiny of counsel’s performance must be highly deferential.” Id., at 689.
The challenge confronting Belmontes’ lawyer, JohnSchick, was very specific. Substantial evidence indicated that Belmontes had committed a prior murder, and the prosecution was eager to introduce that evidence duringthe penalty phase of the McConnell trial. The evidence of the prior murder was extensive, including eyewitnesstestimony, Belmontes’ own admissions, and Belmontes’ possession of the murder weapon and the same type ofammunition used to kill the victim. Record 2239–2250, 2261; Deposition of John Schick, Exhs. 62, 63, 64 (Sept.26, 1995).
The evidence, furthermore, was potentially devastating.It would have shown that two years before Steacy McCon-
3 Cite as: 558 U. S. ____ (2009)
Per Curiam
nell’s death, police found Jerry Howard’s body in a se-cluded area. Howard had been killed execution style, with a bullet to the back of the head. The authorities suspectedBelmontes, but on the eve of trial the State’s witnesses refused to cooperate (Belmontes’ mother had begged one not to testify). The prosecution therefore believed it could not prove Belmontes guilty of murder beyond a reasonable doubt. What the prosecution could prove, even without the recalcitrant witnesses, was that Belmontes possessed the gun used to murder Howard. So the State offered, and Belmontes accepted, a no-contest plea to accessory afterthe fact to voluntary manslaughter. Record 2239–2243; Deposition of John Schick, Exhs. 62, 63, 64.
But Belmontes had not been shy about discussing themurder, boasting to several people that he had killed Howard. Steven Cartwright informed the district attorneythat Belmontes had confessed to the murder. A police informant told detectives that Belmontes “bragged” aboutthe murder, stating that he was “mad” at Howard because “the night before, he had quite a [lot] of dope and wouldn’tshare it with him.” After double jeopardy protection set in and he had been released on parole, Belmontes admitted his responsibility for the murder to his counselor at the California Youth Authority, Charles Sapien. During histime in confinement, Belmontes had “always denied thathe was the [one] who shot Jerry Howard.” But because Sapien “had been square with [Belmontes],” Belmontes decided to level with Sapien upon his release, tellingSapien that he had “ ‘wasted’ that guy.” Record 2240; Deposition of John Schick, Exhs. 62, 63, 64.
Schick understood the gravity of this aggravating evi-dence, and he built his mitigation strategy around theoverriding need to exclude it. California evidentiary rules,Schick knew, offered him an argument to exclude the evidence, but those same rules made clear that the evi-dence would come in for rebuttal if Schick opened the door.
4 WONG v. BELMONTES
Per Curiam
Record 2256; see also People v. Rodriguez, 42 Cal. 3d 730, 791–792, 726 P. 2d 113, 153 (1986); People v. Harris, 28 Cal. 3d 935, 960–962, 623 P. 2d 240, 254 (1981). Schick thus had “grave concerns” that, even if he succeeded ini-tially in excluding the prior murder evidence, it would stillbe admitted if his mitigation case swept too broadly.Accordingly, Schick decided to proceed cautiously, struc-turing his mitigation arguments and witnesses to limitthat possibility. Deposition of John Schick 301, 309–310; see Strickland, supra, at 699 (“Restricting testimony onrespondent’s character to what had come in at the pleacolloquy ensured that contrary character and psychologi-cal evidence and respondent’s criminal history, which counsel had successfully moved to exclude, would not comein”).
As Schick expected, the prosecution was ready to admitthis evidence during the sentencing phase. Schick moved to exclude the evidence, arguing that the State should beallowed to tell the jury only that Belmontes had been convicted of being an accessory after the fact to voluntarymanslaughter—nothing more. Record 2240–2254. Schick succeeded in keeping the prosecution from presenting thedamaging evidence in its sentencing case in chief, but hisclient remained at risk: The trial court indicated the evi-dence would come in for rebuttal or impeachment if Schick opened the door. Id., at 2256.
This was not an empty threat. In one instance, Schick elicited testimony that Belmontes was not a violent per-son. The State objected and, out of earshot of the jury,argued that it should be able to rebut the testimony withthe Howard murder evidence. Id., at 2332–2334. The Court warned Schick that it was “going to have to allow [the prosecution] to go into the whole background” if Schick continued his line of questioning. Id., at 2334. Schick acquiesced, and the court struck the testimony. Ibid.
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The Court’s warning reinforced Schick’s understandingthat he would have to tailor his mitigation case carefullyto preserve his success in excluding the Howard murderevidence. With that cautionary note in mind, Schick put on nine witnesses he thought could advance a case for mitigation, without opening the door to the prior murderevidence. See id., at 2312–2417.
The Court of Appeals determined that in spite of these efforts, Schick’s performance was constitutionally deficient under Circuit precedent. Belmontes, 529 F. 3d, at 862– 863. The State challenges that conclusion, but we need not resolve the point, because we agree with the DistrictCourt that Belmontes cannot establish prejudice.
II To establish prejudice, Belmontes must show “a reason-
able probability that, but for counsel’s unprofessionalerrors, the result of the proceeding would have been dif-ferent.” Strickland, 466 U. S., at 694. That showing requires Belmontes to establish “a reasonable probability that a competent attorney, aware of [the available mitigat-ing evidence], would have introduced it at sentencing,” and “that had the jury been confronted with this . . . miti-gating evidence, there is a reasonable probability that itwould have returned with a different sentence.” Wiggins v. Smith, 539 U. S. 510, 535, 536 (2003).
The Ninth Circuit determined that a reasonably compe-tent lawyer would have introduced more mitigation evi-dence, on top of what Schick had already presented. For purposes of our prejudice analysis, we accept that conclu-sion and proceed to consider whether there is a reasonable probability that a jury presented with this additional miti-gation evidence would have returned a different verdict.
In evaluating that question, it is necessary to consider all the relevant evidence that the jury would have hadbefore it if Schick had pursued the different path—not just
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the mitigation evidence Schick could have presented, but also the Howard murder evidence that almost certainlywould have come in with it. See Strickland, supra, at 695–696, 700. Thus, to establish prejudice, Belmontesmust show a reasonable probability that the jury would have rejected a capital sentence after it weighed the entire body of mitigating evidence (including the additional testimony Schick could have presented) against the entirebody of aggravating evidence (including the Howard mur-der evidence). Belmontes cannot meet this burden.
We begin with the mitigating evidence Schick did pre-sent during the sentencing phase. That evidence was substantial. The same Ninth Circuit panel addressing the same record in Belmontes’ first habeas appeal agreed,recognizing “the substantial nature of the mitigatingevidence” Schick presented. Belmontes v. Woodford, 350 F. 3d 861, 907 (2003). It reiterated the point several times. See id., at 874, 901, 908.
All told, Schick put nine witnesses on the stand over aspan of two days, and elicited a range of testimony onBelmontes’ behalf. A number of those witnesses high-lighted Belmontes’ “terrible” childhood. They testified that his father was an alcoholic and extremely abusive.Belmontes’ grandfather described the one-bedroom house where Belmontes spent much of his childhood as a“chicken coop.” Belmontes did not do well in school; he dropped out in the ninth grade. His younger sister died when she was only 10 months old. And his grandmotherdied tragically when she drowned in her swimming pool. See Record 2314–2319, 2324–2325, 2344.
Family members also testified that, despite these diffi-culties, Belmontes maintained strong relationships withhis grandfather, grandmother, mother, and sister. Id., at 2317–2318, 2325–2326. And Belmontes’ best friend of-fered the insights of a close friend and confidant. Id., at 2329–2332.
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Schick also called witnesses who detailed Belmontes’ religious conversion while in state custody on the acces-sory charge. These witnesses told stories about Belmon-tes’ efforts advising other inmates in his detention center’sreligious program, to illustrate that he could live a produc-tive and meaningful life in prison. They described hissuccess working as part of a firefighting crew, detailing his rise from lowest man on the team to second in command. Belmontes’ assistant chaplain even said that he would use Belmontes as a regular part of his prison counseling pro-gram if the jury handed down a life sentence. Id., at 2379–2384, 2396–2398, 2400–2407.
Belmontes himself bolstered these accounts by testifyingabout his childhood and religious conversion, both atsentencing and during allocution. Belmontes described his childhood as “pretty hard,” but took responsibility forhis actions, telling the jury that he did not want to use his background “as a crutch[,] to say I am in a situation now . . . because of that.” Id., at 2343.
On remand from this Court, the Court of Appeals—addressing Belmontes’ ineffective assistance claim for the first time—changed its view of this evidence. Instead of finding Schick’s mitigation case “substantial,” as it previ-ously had, Belmontes, 350 F. 3d, at 907, the Ninth Circuit this time around labeled it “cursory,” Belmontes, 529 F. 3d, at 841, 861, n. 14, 866. Compare also Belmontes, 350 F. 3d, at 874, 901, 907 (labeling the mitigation evidence Schick presented “substantial”), with Belmontes, 529 F. 3d, at 847, n. 3, 874 (labeling the same evidence “insub-stantial”). More evidence, the Court of Appeals now con-cluded, would have made a difference; in particular, more evidence to “humanize” Belmontes, as that court put it nofewer than 11 times in its opinion. Belmontes, 529 F. 3d, at 850, 859, 860, 862, 863, 864, 865, and n. 18, 869, 872, 874. The Court determined that the failure to put on this evidence prejudiced Belmontes.
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There are two problems with this conclusion: Some ofthe evidence was merely cumulative of the humanizingevidence Schick actually presented; adding it to what wasalready there would have made little difference. Other evidence proposed by the Ninth Circuit would have put into play aspects of Belmontes’ character that would havetriggered admission of the powerful Howard evidence in rebuttal. This evidence would have made a difference, but in the wrong direction for Belmontes. In either event, Belmontes cannot establish Strickland prejudice.
First, the cumulative evidence. In the Court of Appeals’ view, Belmontes should have presented more humanizing evidence about Belmontes’ “difficult childhood” and high-lighted his “positive attributes.” 529 F. 3d, at 864. As for his difficult childhood, Schick should have called witnesses to testify that “when Belmontes was five years old, his 10-month-old sister died of a brain tumor,” that he “exhibited symptoms of depression” after her death, that his grand-mother suffered from “alcoholism and prescription drug addiction,” and that both his immediate and extended family lived in a state of “constant strife.” Ibid. As for his positive attributes, Schick should have produced testi-mony about Belmontes’ “strong character as a child in the face of adversity.” Ibid. Schick should have illustrated that Belmontes was “kind, responsible, and likeable”; that he “got along well with his siblings” and was “respectfultowards his grandparents despite their disapproval of his mixed racial background”; and that he “participated incommunity activities, kept up in school and got along withhis teachers before [an] illness, and made friends easily.” Ibid.
But as recounted above and recognized by the statecourts and, originally, this very panel, Schick did put onsubstantial mitigation evidence, much of it targeting the same “humanizing” theme the Ninth Circuit highlighted.Compare, e.g., ibid., with Record 2317 (death of 10-month-
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old sister); id., at 2319, 2325 (difficult childhood); id., at 2314–2315 (family member’s addictions); id., at 2314– 2315, 2324–2325 (family strife and abuse); id., at 2317, 2319, 2347–2348, 2397 (strong character as a child); id., at 2326–2327 (close relationship with siblings); id., at 2317– 2319 (close relationship with grandparents); id., at 2348– 2351 (participation in community religious events); see also, e.g., Belmontes’ Traverse to Respondent’s Return toPet. for Writ of Habeas Corpus in No. 5–89–0736–EJG–JFM (ED Cal.), p. 64 (“[C]ounsel’s presentation was ar-guably adequate only with respect to [evidence] of ‘human-izing’ petitioner”). The sentencing jury was thus “wellacquainted” with Belmontes’ background and potential humanizing features. Schriro v. Landrigan, 550 U. S. 465, 481 (2007). Additional evidence on these points wouldhave offered an insignificant benefit, if any at all.
The Ninth Circuit also determined that both the evi-dence Schick presented and the additional evidence itproposed would have carried greater weight if Schick hadsubmitted expert testimony. Such testimony could “makeconnections between the various themes in the mitigationcase and explain to the jury how they could have contrib-uted to Belmontes’s involvement in criminal activity.” Belmontes, 529 F. 3d, at 853. See also ibid. (discussing expert’s federal habeas testimony on importance of expert testimony). But the body of mitigating evidence the NinthCircuit would have required Schick to present was neither complex nor technical. It required only that the jury makelogical connections of the kind a layperson is wellequipped to make. The jury simply did not need experttestimony to understand the “humanizing” evidence; it could use its common sense or own sense of mercy.
What is more, expert testimony discussing Belmontes’ mental state, seeking to explain his behavior, or putting itin some favorable context would have exposed Belmontesto the Howard evidence. See Darden v. Wainwright, 477
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U. S. 168, 186 (1986) (“Any attempt to portray petitioner as a nonviolent man would have opened the door for theState to rebut with evidence of petitioner’s prior convic-tions. . . . Similarly, if defense counsel had attempted to put on evidence that petitioner was a family man, theywould have been faced with his admission at trial that, although still married, he was spending the weekendfurlough with a girlfriend”).
If, for example, an expert had testified that Belmontes had a “ ‘high likelihood of a . . . nonviolent adjustment to a prison setting,’ ” as Belmontes suggested an expert might,see Brief for Appellant in No. 01–99018 (CA9), p. 34, the question would have immediately arisen: “What was hispropensity toward violence to begin with? Does evidence of another murder alter your view?” Expert testimony explaining why the jury should feel sympathy, as opposed simply to facts that might elicit that response, would haveled to a similar rejoinder: “Is such sympathy equally ap-propriate for someone who committed a second murder?”Any of this testimony from an expert’s perspective wouldhave made the Howard evidence fair game.
Many of Belmontes’ other arguments fail for the same reason. He argues that the jury should have been toldthat he suffered an “extended bout with rheumatic fever,” which led to “emotional instability, impulsivity, and im-pairment of the neurophysiological mechanisms for plan-ning and reasoning.” Amended Pet. for Writ of Habeas Corpus 120. But the cold, calculated nature of the Howard murder and Belmontes’ subsequent bragging about itwould have served as a powerful counterpoint.
The type of “more-evidence-is-better” approach advo-cated by Belmontes and the Court of Appeals might seemappealing—after all, what is there to lose? But here there was a lot to lose. A heavyhanded case to portray Belmon-tes in a positive light, with or without experts, would have invited the strongest possible evidence in rebuttal—the
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evidence that Belmontes was responsible for not one but two murders.
Belmontes counters that some of the potential mitigat-ing evidence might not have opened the door to the priormurder evidence. The Court of Appeals went so far as to state, without citation, that “[t]here would be no basis for suggesting that [expert testimony] would be any different if the expert were informed that Belmontes committed twomurders rather than one.” Belmontes, 529 F. 3d, at 869, n. 20. But it is surely pertinent in assessing expert testi-mony “explain[ing] . . . involvement in criminal activity,” id., at 853, to know what criminal activity was at issue. And even if the number of murders were as irrelevant as the Ninth Circuit asserted, the fact that these two murders were so different in character made each of them highly pertinent in evaluating expert testimony of the sort envi-sioned by the Court of Appeals.
The Ninth Circuit noted that the trial court retained discretion to exclude the Howard evidence even if Schick opened the door. Id., at 869–870, n. 20. If Schick had doubts, the Court of Appeals contended, he could havesecured an answer in advance through a motion in limine. Ibid. The trial judge, however, left little doubt where he stood. While ruling that the prosecution could not present the evidence in its case in chief, Record 2254, the judge made clear that it would come in for certain rebuttal purposes, id., at 2256, 2332–2334. When Schick elicited testimony that Belmontes was not violent, for example,the judge ordered it stricken and warned Schick that hewould admit the Howard murder evidence—to let the prosecution “go into the whole background”—if Schickpressed forward. Id., at 2334.
In balancing the mitigating factors against the aggrava-tors, the Court of Appeals repeatedly referred to the ag-gravating evidence the State presented as “scant.” Bel-montes, 529 F. 3d, at 870, 873, 874, 875, 878. That
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characterization misses Strickland’s point that the review-ing court must consider all the evidence—the good and the bad—when evaluating prejudice. See Strickland, 466 U. S., at 695–696, 700. Here, the worst kind of bad evi-dence would have come in with the good. The only reasonit did not was because Schick was careful in his mitigation case. The State’s aggravation evidence could only becharacterized as “scant” if one ignores the “elephant in the courtroom”—Belmontes’ role in the Howard murder—that would have been presented had Schick submitted theadditional mitigation evidence. Belmontes v. Ayers, 551 F. 3d 864, 867 (CA9 2008) (Callahan, J., dissenting fromdenial of rehearing en banc).
Even on the record before it—which did not include the Howard murder—the state court determined that Belmon-tes “was convicted on extremely strong evidence that hecommitted an intentional murder of extraordinary brutal-ity.” Belmontes, 45 Cal. 3d, at 819, 755 P. 2d, at 354. That court also noted that “[t]he properly admitted aggra-vating evidence in this case—in particular, the circum-stances of the crime—was simply overwhelming.” Id., at 809, 755 P. 2d, at 348 (citation omitted). The Ninth Cir-cuit saw the murder differently. It viewed the circum-stances of the crime as only “conceivably significant” as an aggravating factor. Belmontes, 529 F. 3d, at 871. In particular, the Court of Appeals concluded that “[t]hecrime here did not involve . . . needless suffering on the part of the victim.” Ibid.
We agree with the state court’s characterization of themurder, and simply cannot comprehend the assertion by the Court of Appeals that this case did not involve “need-less suffering.” The jury saw autopsy photographs show-ing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpseshowed numerous “defensive bruises and contusions on
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[her] hands, arms, and feet,” id., at 839, which “plainly evidenced a desperate struggle for life at [Belmontes’] hands,” Belmontes, 755 P. 2d, at 354. Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. Record 3. The juryalso heard that this savage murder was committed solelyto prevent interference with a burglary that netted Bel-montes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.
Some of the error below may be traced to confusion about the appropriate standard and burden of proof. While the Court of Appeals quoted the pertinent languagefrom Strickland, that court elsewhere suggested it might have applied something different. In explaining its preju-dice determination, the Ninth Circuit concluded that “[t]heaggravating evidence, even with the addition of evidencethat Belmontes murdered Howard, is not strong enough, in light of the mitigating evidence that could have beenadduced, to rule out a sentence of life in prison.” Belmon-tes, 529 F. 3d, at 875. But Strickland does not require theState to “rule out” a sentence of life in prison to prevail. Rather, Strickland places the burden on the defendant,not the State, to show a “reasonable probability” that theresult would have been different. 466 U. S., at 694. Un-der a proper application of the Strickland standard, Bel-montes cannot carry this burden.
It is hard to imagine expert testimony and additional facts about Belmontes’ difficult childhood outweighing the facts of McConnell’s murder. It becomes even harder to envision such a result when the evidence that Belmontes had committed another murder—“the most powerfulimaginable aggravating evidence,” as Judge Levi put it, Belmontes, S-89–0736, App. to Pet. for Cert. 183a—isadded to the mix. Schick’s mitigation strategy failed, butthe notion that the result could have been different if only
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Schick had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful.
The petition for certiorari and the motion for leave toproceed in forma pauperis are granted. The judgment ofthe Court of Appeals for the Ninth Circuit is reversed, andthe case is remanded for further proceedings consistentwith this opinion.
It is so ordered.
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STEVENS, J., concurring
SUPREME COURT OF THE UNITED STATES ROBERT WONG, WARDEN v. FERNANDO
BELMONTES, JR. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 08–1263. Decided November 16, 2009
JUSTICE STEVENS, concurring. When Fernando Belmontes was sentenced to death in
1982, California Penal Code §190.3(k)* conveyed theunmistakable message that juries could not give anymitigating weight to evidence that did not extenuate the severity of the crime. See Ayers v. Belmontes, 549 U. S. 7, 27 (2006) (STEVENS, J., dissenting). The trial judge who presided at Belmontes’ sentencing hearing so understood the law, and his instructions to the jury reflected that understanding. See id., at 33–34. It was only later thatboth the California Supreme Court and this Court squarely held that a jury must be allowed to give weight to any aspect of a defendant’s character or history that may provide a basis for a sentence other than death, even if such evidence does not “ ‘tend to reduce the defendant’s culpability for his crime.’ ” Id., at 28 (quoting Skipper v. South Carolina, 476 U. S. 1, 11 (1986) (Powell, J., concur-ring in judgment)).
The testimony adduced at Belmontes’ sentencing hear-ing described his religious conversion and his positivecontributions to a youth rehabilitation program. Neither his own testimony, nor that of the two ministers and theother witnesses who testified on his behalf, made any attempt to extenuate the severity of his crime. Their testimony did, however, afford the jury a principled basis for imposing a sentence other than death. See Ayers, 549 ——————
*Cal. Penal Code Ann. §190.3(k) (West 1988).
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U. S., at 29–31 (STEVENS, J., dissenting). A review of the entire record, especially the colloquy between six jurors and the trial judge, makes it clear to me that “the jurybelieved that the law forbade it from giving that evidence any weight at all.” Id., at 36–39. I therefore remain con-vinced that in its initial review of this case, the Court of Appeals correctly set aside Belmontes’ death sentence.
The narrow question that is now before us is whether the additional mitigating evidence that trial counsel failed to uncover would have persuaded the jury to return adifferent verdict. The evidence trial counsel might havepresented hardly matters, however, because in my viewthe conscientious jurors’ mistaken understanding of thelaw would have prevented them from giving that addi-tional evidence “any weight at all,” id., at 39, let alone controlling weight. Despite my strong disagreement withthe Court’s decision to review this case once again, I nev-ertheless agree with the Court’s conclusion that trialcounsel’s failure to present additional mitigating evidenceprobably did not affect the outcome of the trial.
